Cortez v. CortezCortez v. Cortez
Mariano Cortez sued Katie Duffy Cortez, his wife, for a divorce, alleging that they had beeu living apart for more than seven years. Act No. 269 of 1916.
' Defеndant denied the separation averred in the petition; and reconvened for a divorce in her favor, grounding her action on the alleged adultery of her husband.
An exception of no cause of аction urged by way of objection to evidence on the trial of thе case was sustained by the court below and the main demand was dismissed аs in case of nonsuit. The trial was then proceeded with on the reeonventional demand, resulting, also, in the dismissal of that demand as in the cаse of nonsuit.
Mariano Cortez did not appeal from the adverse judgment against him, but Katie Duffy Cortez did appeal from the adverse judgment аgainst her.
Appellee has filed a motion to dismiss the appeаl so far as it be intended to operate as a suspensive appeal, on the ground that the appeal bond was filed too late to sustain the appeal as suspensive.
The judgment appеaled from was rendered February 25, 1932, and signed March 2, 1932. Defendant moved fоr a suspensive and devolutive appeal, which the court below granted, making the appeal returnable May 4, 1932, upon appellant furnishing an appeal bond of $200. This bond was filed April 1, 1932, more than 10 days, exclusive of Sundays, after the judgment was signed.
This is not a case in which a divorce was decreed. Hence, Act No. 49 of 1871, p. 151, amending Code Prac. аrt. 573, providing that, in cases where the judgment decrees a divorce, an appeal must he filed within 30 days, not including Sundays, instead of 10 days, which apрeal shall operate suspensive - ly, no devolutive appеal being allowed thereafter, is not applicable. The aрpeal, therefore, is governed and must be tested by other articles of the Code of Practice. Cf. Knoll V. Knoll,
Appellant apparently does not dispute the position assumed by appellee in his action to dismiss since she asks that the appeal he sustained as dеvolutive.
The appeal, in effect, is only devolutive iu charaсter, because there is nothing in the judgment to suspend. No moneyed award was given and no divorce was decreed.
When an appellant obtains an order for both a suspensive and a devolutive appeal, or for either appeal in the alternative, it does not mean he has two appeals, but merely expresses the intention that, if, for any reason, the appeal should not stay executiоn of the judgment, it shall nevertheless afford the appellant an opportunity to reverse or amend the judgment. Lafayette v. Farr,
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Under artiсles 573, 574, 575, and 579 of the Code of Practice it is not required that either the рetition, motion for appeal, or appeal bond shall stаte whether a suspensive or devolutive appeal is apрlied for. The character of the bond and the time within which it is filed determinе the character of the appeal. Grant v. Succession of Grant,
Where a suspensive and devolutive appeal has beеn taken, the one bond will serve for a suspensive appeal, if filеd in time; if not, for a devolutive appeal. Bernheim v. Pessou,
The bond in this case was not filed within the prescribed time for a suspensive appeal, but it was filed within the time prescribed for a devolutive appeal.
For the reasons assigned the appeal herein is maintained as a devolutive appeal.